INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW protection can be challenged and annulled via Article 263 TFEU. This view is contested by others.33 The Greek Competition Authority looks intensively at the issue of policy cohesion, and the paper by Inderst and Thomas puts the issue quite directly, albeit from the softening and not from the hardening angle: “The consideration of such externalities may thus be seen rather a matter of environmental regulation and policy, and not, to put it bluntly, an excuse for the softening of the competition rules. As with the debate on the multi-goals approach of competition law, however, we do not take a stance on whether society is indeed best served when each institution, such as an antitrust agency or an environmental agency, is given q one-dimensional task – and we see both arguments in favour and against such a view from a conceptual and practical perspective.”34 Personally, I would feel comfortable advising that Article 3 TEU cannot be the basis of a claim on a standalone basis, but I would not bet on the impossibility of an Article 11 TFEU attack. According to Anja Käller,35 even Member States must comply with Article 11 whenever they are applying EU law. However, even according to her, Article 11 is not sufficiently detailed to form the basis of non- -action claims (Article 265 TFEU). Scholars are divided and the issue is not settled. I am not enough of a constitutionalist to provide a final answer to these questions. The objective is simply to delimit some virgin territory. Given that that Elon will not take all of us on the journey to Speculoos, environmental protection remains a pressing matter for the survival of mankind. We cannot be certain that we will not be surprised one day by a competition law decision taking that into account. There are parallels. The Commission has used its powers in competition law to overcome issues rooted in non-harmonized areas such as taxation or intellectual property. State aid law one day discovered that any deficiency in the public procurement process automatically led to the presence of State aid. Some authors point out that there is not only “perfect competition” but also “toxic competition”.36 Finally, there is a well-established analogy in distribution law: a wholesaler can be lawfully prohibited from selling to end users 33 Ludwig Krämer, in: Hans von der Groeben, Armin Hatje & Jürgen Schwarze (2015), Artikel 11, paragraph 28. 34 Ibid., p. 355 f. 35 Above note 32. 36 Maurice E. Stucke & Ariel Ezrachi, Competition Overdose- – How Free Market Mythology Transformed Us from Citizens Kings to Market Servants, 2020.
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